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HomeMy WebLinkAbout21-0303 TicketSearch North AmericaLICENSE SUBSCRIPTION AGREEMENT THIS AGREEMENT is hereby made and entered into this -� day of , 2021, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referre to as "City") and TicketSearch North America LLC, a Florida limited liability company, (hereinafter referred to as "TSNA" or "Licensor"). WHEREAS, TicketSearch Pty Ltd, an Australian Company Number (ACN) 633 608 438 ("TicketSearch Australia") is the owner of an Internet -based self -managed ticketing system called "TicketSearch", and which is more specifically described below; and WHEREAS, TicketSearch is an Internet -based self -managed ticketing system with related procedures for the purpose of managing event or activity creation, event, product and/or merchandise inventory management, handling subscriptions and packages, membership programs, deals & discounts, donations, ticket sales generated at a Client's Ticket Office or via the Internet, ticket printing and / or distribution via SMS or e-ticket, tracking and reporting client and event data, and other related features; and WHEREAS, Licensor TSNA is the authorized licensor of TicketSearch in the United States of America; and WHEREAS, City elects to utilize TSNA pursuant to the terms and conditions set forth in this Agreement; and WHEREAS, the City shall purchase, and TSNA shall provide TicketSearch to the City pursuant to the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the terms and provisions of this agreement, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: RECITALS. The above recitals are incorporated into this Agreement as if fully recited herein. 2. PURCHASE. The City shall purchase, and TicketSearch shall sell the goods and/or services described by Attachment A, attached hereto and made a part hereof. 3. TERM. This Agreement shall terminate April 1, 2024. Upon termination TSNA shall remove all City ticket data and other City data from TicketSearch and the City shall remit all sums owing to TSNA as provided herein. 4. CONFLICT. In the event of any conflict between the terms and provisions of this purchase agreement and Attachment A hereto, the terms and provisions of this purchase agreement shall supersede and control. 5. LAW/VENUE. This agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be solely in the Circuit Court of Kane County, Illinois. TicketSearch hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof; and TicketSearch agrees that service by first class U.S. mail to TicketSearch North America LLC, 4100 Corporate Square, Suite 160, Naples, FL 34104 shall constitute effective service. City agrees that service by first class U.S. mail to City of Elgin, 150 Dexter Court, Elgin, IL 60120 shall constitute effective service. Both parties hereto waive any rights to a jury. This agreement and the enforcement thereof shall not be subject to arbitration. Notwithstanding anything to the contrary in any attachment hereto, this agreement is subject to and governed by the laws of the State of Illinois. 6. NO MODIFICATION. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 7. INTEREST. TicketSearch hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this agreement, and waives any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act (50 ILCS 50511, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this agreement. 8. SEVERABILITY. The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. 9. COMPLIANCE WITH LAW. Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this agreement, TicketSearch shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, TicketSearch hereby certifies, represents and warrants to the City that all of TicketSearch's employees and/or agents who will be providing products and/or services with respect to this agreement shall be legally authorized to work in the United States. TicketSearch shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this agreement. The City shall have the right to audit any records in the possession or control of TicketSearch to determine TicketSearch's compliance with the provisions of this section. In the event the City proceeds with such an audit, TicketSearch shall make available to the City TicketSearch's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 10. LIMITATION OF DAMAGES. In no event shall City be liable for any monetary damages in excess of the fees contemplated by this agreement. In no event shall City be liable for any consequential, special or punitive damages, or any damages resulting from loss of profit. 11. OWNERSHIP AND USE OF DATA. Notwithstanding anything to the contrary provided for herein, City shall retain and exclusive ownership of all City generated and/or supplied data. In no event shall such data or information be used by TSNA without the prior written consent of the City. 12. INDEMNIFICATION. To the fullest extent permitted by law, TSNA shall indemnify, defend and hold harmless the City, its officers, employees, boards and commissions, from and against any and all claims, suits, judgments, costs, attorney's fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of TSNA or TSNA's officers, employees, agents or subcontractors in the performance of this agreement, including but not limited to, all goods delivered or services or work performed hereunder. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. 13. LICENSE AND FEES. 13.1 TSNA grants a limited revocable license to the City to use in accordance with the terms of this Agreement. 13.2 The City shall not have any right, title or interest in the intellectual property rights associated with TicketSearch, except as specifically set forth in this Agreement. Further, except for the right and licenses expressly set forth in this Agreement, nothing contained herein shall be construed to grant or confer by implication, estoppel or otherwise to City any license or right to any intellectual property rights of TSNA or TicketSearch Australia. 14. CENTRAL COMPUTER FACILITY. 14.1 TicketSearch is hosted on Amazon Web Services. Barring unforeseen technical difficulties, acts of God or other events beyond the control of TicketSearch, the central computer facility will be in operation 24 hours a day/seven days per week, except for scheduled downtime of up to 2 (two) hours per week, and will be adequately staffed to perform all services related to TicketSearch services under this Agreement. 14.2 City shall hold TSNA harmless for any losses, damages or any other expenses caused by, resulting from, or relating in any way to any downtime, and further, City hereby releases TSNA from all liability, and waives any right to bring a claim against TSNA, in connection with, or relating in any way to, downtime; provided, however, that City shall not be liable for payment to TSNA for any days during which there was an occurrence of any downtime in excess of one hour. 15. EVENT SET UP. City shall have the sole responsibility for the proposed arrangement of the Venue for all events and activities, including without limitation, ticket templates and pricing structures, providing ticket text printing and scanning information, event description information, ticket terms and conditions including refunds and exchanges, building venues and seat maps and all other information necessary for the proper sale of tickets for products or services provided. TSNA shall not be responsible for entering any of the foregoing information into TicketSearch. TSNA shall not be responsible for any mistakes made by City or their operators including third party promoters in the event set-up. 16. TREATMENT OF CUSTOMER DATA. TSNA recognizes that the Customer is a critical asset of the City and not an asset of TSNA. As such, TSNA shall in no way share, sell, disseminate or otherwise provide such data to any other third party, without the written permission from the City with exception to its and TicketSearch Australia's third party vendors and other parties who are necessary in the operations of TicketSearch. TSNA shall not utilize the Customer Data for any purpose except as required to operate TicketSearch or for the purpose of fulfilling its duties under this Agreement, or as may be required by law. Customer Data collected by the City shall not be accessible to any other licensed TicketSearch client. Similar data collected about the same Customer, but in relation to another licensed TicketSearch client, shall be accessible only by that client. 17. ACCOUNTING PROCEDURES. City shall utilize City's own credit card merchant account, integrated with the TicketSearch online credit card transaction processing system for the purpose of accepting credit card orders for Ticket Sales on the internet or at the Ticket Box Office. TSNA shall invoice the City monthly for amounts owed by the City to TSNA as provided herein. The City shall pay TSNA within 30 days of the receipt of any invoices. 18. CLIENT DEFAULT. 18.1 The occurrence of any of the following events for 30 days (or such shorter time as may be specified) after receipt by the City of written notice of such event and City's failure to cure such event shall, at TSNA's option, constitute an Event of Default and entitle TSNA to immediately terminate this Agreement and the City's right to effect 4 sales of tickets through TicketSearch and take possession of any Equipment provided by TicketSearch North America, but not limited to the equipment listed in Attachment A being items purchased by the City: (a) Failure of the City to pay TSNA any sums due under this Agreement; and (b) City's breach of any material term, covenant, condition, representation or warranty in this Agreement. 18.2 Upon the occurrence of any of the foregoing Events of Default, TSNA may: (i) Terminate or disconnect the City's access to TicketSearch; (ii) Institute litigation for the recovery of all costs, loss and damages resulting from the City's failure to perform its obligations under this Agreement; and/or (iii) Terminate this Agreement. 18.2.1 All remedies under this Agreement shall be cumulative and in addition to any other remedy available to TSNA at law or in equity. In the event of a disconnection to TicketSearch, a reconnection fee will apply. 19. CITY'S REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION. The City represents and warrants to TSNA that: (a) The entering into and performance of this Agreement will not violate any agreement, contract, judgment, order, law or regulation applicable to the City (including without limitation an exclusive agreement or understanding between the City and/or the Venue or the Venue's owners or operators, and any third party respecting the sale of Tickets for any Events held at the Venue) or any provision of the City's constitution, charter or bylaws, or result in any breach of, constitute a default under, or result in the creation of, any lien, charge, security interest or other encumbrance upon any assets of the City or upon the Equipment, pursuant to any agreement or instrument to which the City is a party or by which it or its assets may be bound; (b) The City is duly authorized to ticket patrons at each Venue at which any of its Events are held; and (c) The City shall not reverse engineer, disassemble, modify, adapt, translate, prepare derivative works based on, attempt to interfere with the operation of, decompile, or attempt to derive the source code from, any portion of TicketSearch, or permit, enable or cause any third party to do so, without the prior written consent of TicketSearch North America. 20. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY. 20.1 The City hereby acknowledges and agrees that TSNA has no control over internet- related and server conditions (including without limitation internet access, speed and network service interruptions). TSNA IS PROVIDING THE SERVICES ON AN AS -IS, WHERE -IS, WITH ALL FAULTS, BASIS, AND DOES NOT HEREBY GIVE ANY WARRANTIES RELATING TO TICKETSEARCH. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TSNA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT AND TICKETSEARCH, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT PERMITTED BY APPLICABLE LAW. TSNA MAKES NO WARRANTY THAT (A) TICKETSEARCH WILL MEET THE CITY'S REQUIREMENTS; (B) THE CITY'S USE OF TICKETSEARCH WILL BE TIMELY, UNINTERRUPTED AND ERRORFREE; OR (C) ANY DEFECTS OR ERRORS IN TICKETSEARCH WILL BE CORRECTED. TSNA MAKES NO REPRESENTATION OR WARRANTY THAT TICKETSEARCH OR THE USE OF TICKETSEARCH ARE DESIGNED TO COMPLY WITH FOREIGN OR INTERNATIONAL LAWS OR ANY LAWS OTHER THAN THOSE ORIGINATING WITHIN THE UNITED STATES. 20.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TSNA'S TOTAL AGGREGATE LIABILITY TO THE CITY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, WILL BE LIMITED TO THE SUM OF ALL PAYMENTS ACTUALLY RECEIVED BY LICENSOR FROM THE CITY UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY. 21. PRIOR UNDERSTANDINGS. This Agreement and all documents specifically referred to and executed in connection with this Agreement: (a) Contain the entire and final Agreement of the parties to this Agreement with respect to the subject matter of this Agreement, and (b) Supersede all negotiations, stipulations, understandings, Agreements, representations and warranties, if any, with respect to such subject matter, which precede or accompany the execution of this Agreement. on 22. NOTICES. Each notice and other communication required or permitted to be given under this Agreement ("Notice") must be in writing. Notice is duly given to another party upon: (a) First class United States mail delivery to the other party; and (b) Three business days after the Notice has been deposited with the United States Postal Service with applicable postage prepaid, and addressed to the party as provided herein; or (c) The next business day after the Notice has been deposited with a reputable overnight delivery service, postage prepaid, addressed to the party as provided herein with next -business -day delivery guaranteed, provided that the sending party receives a confirmation of delivery from the delivery -service -provider. Each party shall make a reasonable, good faith effort to ensure that it will accept or receive Notices to it that are given in accordance with this clause. A party may change its address for purposes of this clause by giving the other party written notice of a new address in the manner set forth above. Notices shall be sent to the following: Licensor: Ticket Search North America, LLC 4100 Corporate Square, Suite 160 Naples, FL 34104 Email: info@ticketsearchna.com 23. FREEDOM OF INFORMATION ACT. Client: City of Elgin 150 Dexter Court Elgin, IL 60120 Telephone: 847/931-5902 Email: Wilhehni—b@cityofelgin.org Notwithstanding anything to the contrary herein, the City's good faith compliance with the provisions of the Illinois Freedom of Information Act (5 ILCS 140/1, et seq.) shall not be construed as, and shall not constitute a breach of this Agreement. 24. SURVIVAL. The following Sections of this Agreement shall survive any termination or expiration of this Agreement: Sections 14.2, 18, 19, 20, 24 and 25. 25. MISCELLANEOUS. No changes or amendments to this Agreement shall be valid unless made by an instrument in writing signed by both Parties. The City acknowledges and agrees that it cannot in any way assign its rights, duties and obligations under this Agreement. No failure or delay by either party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and 7 no single or partial exercise of any such right, power or privilege will preclude any other or future exercise of any other right, power or privilege under this Agreement. 26. EXECUTION. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this agreement shall be re -executed by the parties in an original form. No parry to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. TicketSearch N America, LLC Si nature CEO Title FALegal Dept\Agreement\TicketSearch-License Agr-02-23-21.docx RUM H T/iTicketSearch ATTACHMENT A Ticket Processing fee The Ticket Processing Fee is $0.65 per ticket processed. Ticketing built your WayTS Client shall pay to Licensor the Ticket Processing Fee, which will be calculated based on the Net tickets processed by Client using any part of TicketSearch. "Net tickets" is defined as the total number of tickets processed on a monthly basis less refunds, exchanges and complimentary tickets, and excluding donations. Licensor shall invoice Client all Ticket Processing Fees owed on a monthly basis based on Net tickets processed during the previous calendar month, and Client shall pay each such invoice within thirty (30) calendar days after receipt. 2. Annual Minimum Tickets Processed Client agrees to process the following minimum numbers of tickets each year as determined by TicketSearch North America: "14 Year 1 waived Year 2 waived Year 3 waived Should the annual sum total of Client's tickets processed not amount to the above minimum totals (the "Minimum Tickets"), Client shall pay Licensor a Minimum Tickets Fee which shall be calculated as the difference between the Minimum Tickets as defined above and the annual sum total of Tickets processed by Client which amount is then multiplied by the Ticket Processing Fee. If a Minimum Tickets Fee is owed, then Licensor will send Client an annual invoice, and Client shall pay such invoice within 30 calendar days after receipt. For purposes of clarification, if a Minimum Tickets Fee is owed, it will be owed in addition to any Ticket Processing Fees owed and/or paid in connection with Section 1 of this Schedule B above. 3. Donations Module Client using the Enterprise version shall have the use of the Donations Module free of charge. 4. Memberships Module Memberships are billed at the same price as the per ticket processing fee. 5. Merchandise & Concessions Client agrees to pay Licensor 5% of the monthly sales processed through the Merchandise & Add-Ons Modules. 6. Complimentary tickets Complimentary ticket allowance can be up to 207a of annual sales volume without incurring a charge. Exceeding the 20% threshold of complementary tickets will incur the per ticket fee in Schedule B.1 Complimentary tickets need to be clearly marked as complimentary ($0) priced tickets. T/ Ticket search 7. Other Equipment Ticketing built your wayTs The cost of hiring additional equipment from Licensor such as ticket printers or scanners will be negotiated with Client on a case by case basis. 8. SMS Ticket Delivery Fee Client agrees to pay $0.15 per SMS delivered. 9. Setup and Training Fees Setup Fee $895 (waived) Training Fees $595 (waived) Travel Costs $N/A Customer Data import (excl transaction data) from previous system $500 (waived) Customer Transaction Data import from previous system (3 years history) $3,500 (waived) For the initial setup TicketSearch will provide Client includes up to 6 hours telephone and web training by a Licensor client services representative. 10. Third -Party Platforms License fees for Third -Party platforms such as Tableau, Mailchimp and Zoom are not included in this agreement. 11. Service and Support Client shall be solely responsible for all service, maintenance and support -related costs for computers, printers, Client Internet connection(s), and any other Client -owned hardware and software utilised to access and use TicketSearch. Licensor will provide Client with telephone support specifically related to TicketSearch malfunction. After the completion of the Set Up and Training services set forth in this Schedule B, Client shall maintain its own qualified personnel (or contract with a third -party service provider) who are trained in the day-to-day operation of TicketSearch for the purpose of on -going staff training, answering staff "how-to" questions, and addressing any other TicketSearch usage -related issues. Licensor will continue to provide help desk services to said personnel at no cost to the Client throughout the term of the Agreement. 12. Other Costs Except as provided in this Agreement, all other costs and expenses to be paid by Client under this Agreement shall be due and payable upon issue of an invoice by TicketSearch North America.